Delhi

StateCommission

CC/12/266

NEERU AHUJA - Complainant(s)

Versus

UNITECH LTD. - Opp.Party(s)

11 Nov 2016

ORDER

IN THE STATE COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

 

                                                          Date of Arguments:       11.11.16    

  Date of Decision:           16.11.16   

 

Complaint No. 266/12

In the matter of:

Smt. Neeru Ahuja

W/o Shri Ajay Ahuja

R/o B-4/197, Safdarjung Enclave

New Delhi-110029                                                                                    …..Complainant

 

                                                          Vs.

 

M/s  Unitech Ltd.

6, Community Centre,

Saket,

New Delhi-110017                                                                                    ……Respondent

 

 

O.P. Gupta, Member (Judicial)

 

1.   Whether reporters of local newspaper be allowed to see the judgment?  Yes

 

2.  To be referred to the reporter or not? Yes

 

 

JUDGEMENT

            The complaint proceeds on the averments that complainant came to know about the upcoming project of OP by the name of “Unitech Horizon”, Greater Noida.  She booked the apartment and paid booking amount of Rs. 4,52,878/- on 13.05.06 he further paid Rs. 1,22,319/-. She was allotted Apartment No. 601, in Tower 22 of the said project.  As per clause (2.c) of terms and conditions, delay in payment was to make her liable to pay interest @ 18% per annum compounded quarterly  but as per clause (4.c) II for the delay by company in giving delivery of apartment, the OP was liable to pay charges @ Rs. 5/- per sq. ft. per month which comes to 2% per annum on the consideration payable for apartment.  As per clause (2.c),  earnest money which was 20% of the total consideration was to be forfeited in the event of failure to pay the installment with interest within 90 days.

2.        By the time of filing the complaint the complainant has paid Rs. 47,35,243. Vide letter dated 03.12.07 she was informed that project would be handed over in a phased manner and would commence from Ist quarter of 2009 to June 2011.  Op made offer to book apartment in its upcoming luxurious project namely “Unitech Golf & Country Club” with price tag of Rs. 3 crores per apartment and get the amount paid against previous apartment adjusted.  She has been incurring loss on account of paying rent of Rs. 40,000/- per month from 2009 for existing accommodation where she is currently residing.

3.        OP filed reply raising preliminary objection that complaint is barred by limitation, complaint has no locus-standi,  she has no cause of action, complaint is beyond territorial jurisdiction of this commission, there is arbitration agreement between parties, parties are bound by terms of contract as per various decisions referred in para 7 of preliminary objections. The complainant is prospective investor,  does not fall in the definition of consumer as per decision of Supreme Court in Morgan Stanley Mutual funds vs. Kartik Das II (1994 ) CPJ 7. On merits it stated that due to force majeure circumstance such as agitation of farmers in NOIDA, Greater NOIDA, filing of hundreds of writ petitions challenging acquisition of land before High Court of Allahabad, project was slightly delayed.  There is a provision for payment of compensation in lieu of delay in delivery of possession. The finishing work was in full swing and was likely to be delivered in October/November 2013.

4.        The complainant filed rejoinder and evidence by affidavit.  OP filed affidavit of Shri Ashok Kumar Dubey, DGM Legal in evidence.  Both the parties filed written arguments.

5.        I have gone through the material on record and heard the arguments.

6.        The counsel for the complainant submitted that regarding territorial jurisdiction, agreement between the parties is not relevant as per decision of National Commission in Polymech Plast Machines Ltd vs. Apple Plast Pvt. Ltd. IV (2006) CPJ 172.

7.        The objection of arbitration clause can not be sustained in view of decision of Hon’ble Supreme Court in Fair Air Engineers Pvt. Ltd.  vs. N.K.Modi 1996 (6) SCC 385. Remedy under Consumer Protection Act is in addition to and not in derogation of any other including arbitration.

8.        Plea of force majeure is not tenable in view of decision of National Commission in Puneet Malhotra  vs. P.N. Developers Ltd. 2015 (2) CPJ 18. 

9.        OP has not filed copy of any order of the High Court of Allahabad to show that there was any injunction against the OP from constructing building.  OP filed WS stating that possession was likely to be delivered in the year 2013.  Now we are in 2016 possession is still not in site.  Agreement is of 2006.  OP cannot compel a person booking the flat in 2006 to get possession in 2016.

10.     It was held by National Commission in Reliance infrastructure supra that interest of 10% is reasonable. In this regard reliance can also be placed on decision of Hon’ble Supreme Court in Ghaziabad Development Authority vs, Balbir Singh II (2004) CPJ 12 where it was held that interest is recompense of loss or injury.  Loss of rent paid by the complainant during the period can be considered while granting interest. 

11.   It was held by National Commission in Santosh Johri vs. Unitech that grant of 12% simple interest takes care of additional burden and some monetary compensation for three years from agreement/repurchase.

12.   In first appeal No. 75/14 titled as Reliance Infra Structure vs. Kangaroo Studied decided on 23.09.15 the National Commission held that where complaint is    for refund, interest at the rate of 10% is sufficient.

13. In consumer complaint No. 19/11 titled as Surender Sinha Atwal vs. Parshvnath Developers decided on 11.05.16, National Commission granted interest @ 10% per annum.

14.      Appeal No. FA/278/06 titled as DDA vs. Rajan Bhatia decided on 03.05.06, this Commission held that there is no provision for grant of interest.  Interest is given as compensation.  The same view is taken by Principal Bench of this Commission in complaint case No. 291/10 titled as Harmesh Kr. Kanwar vs. Parshvnath Developers Ltd.  decided on 30.11.15.  Thus grant of interest and compensation, both cannot be awarded.   

15.      To sum up the complainant is entitled to refund of her amount amounting to Rs. 47,35,243/- alongwith interest @ 10% per annum from the date of respective payments till date of refund. This only would take care of compensation as well.

16.      Accordingly OP is directed to refund amount in terms of above order.

            Copy of the order be sent to both the parties free of cost.

                                                                                                                     

 

(O.P.GUPTA)

MEMBER(JUDICIAL)